PEOPLE v. KUCHAR

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PEOPLE v. KUCHAR

August 15, 1997
No. 190073

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v

Ingham Circuit Court

KENNETH FREDERICK KUCHAR, LC No. 95-068713-FC

Defendant-Appellant.

Before: Corrigan, C.J., and Michael J. Kelly and Hoekstra, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of kidnapping
a child under the age of fourteen, MCL 750.350; MSA 28.582. The
trial court sentenced defendant, as a fourth habitual offender,
MCL 769.12; MSA 28.1084, to twenty to thirty years’ imprisonment.
Defendant appeals as of right, and we affirm.

Defendant first argues that the crime with which he was
charged and convicted, child kidnapping, contains an element of
"asportation." Because no evidence of this element was
presented to the jury and the jury was not properly instructed
regarding asportation, defendant contends that his conviction
must be reversed. We disagree.

In determining whether the child kidnapping statute requires
an element of asportation, we believe it instructive to examine
how the element of asportation has been read into the general
kidnapping statute. With respect to the general kidnapping
statute, MCL 750.349; MSA 28.581,[1]
our Supreme Court has concluded that that statute sets forth six
forms of conduct which can constitute the crime of kidnapping. People
v Jaffray, 445 Mich 287, 296-297; 519 NW2d 108 (1994); People
v Wesley, 421 Mich 375, 383-384; 365 NW2d 692 (1984).

Of those six forms, three require a showing of specific
intent, and three do not. Jaffray, supra at 298.
Asportation of the victim has been held to be a judicially
required element of the crime of kidnapping only with respect to
the three forms of kidnapping which do not require a showing of
specific intent. Id. The purpose of reading an asportation
element into the statute with regard to these three forms of
kidnapping, even though the statute does not mention asportation,
is to deter prosecutors from overcharging lesser crimes as
kidnapping, as several lesser crimes arguably involve some type
of "intentional confinement" of the victim. Id.

However, a showing of asportation is not required where the
accused is charged with one of the forms of kidnapping that
requires a showing of a specific intent. Id. at 299. The
specific intent requirement obviates the need to read an
asportation element into the statute. Id.

Applying the above analysis provided by our Supreme Court
concerning asportation under the general kidnapping statute to
the case at bar, we hold that no asportation element needs to be
read into this statute because the statute contains a specific
intent requirement. MCL 750.350(1); MSA 28.582(1) provides, in
pertinent part:

A person shall not maliciously, forcibly, or fraudulently
lead, take, carry away, decoy, or entice away, any child under
the age of 14 years, with the intent to detain or conceal the
child from the child’s parent or legal guardian, or from the
person or persons who have adopted the child. (emphasis added).

Here, the placement of the phrase describing the intent
required for the commission of this crime clearly makes it
applicable to all of the forms of conduct that precede it. Given
the existence of a specific intent requirement, we find no reason
to read an asportation element into this statute. Therefore,
contrary to defendant’s arguments on appeal, his conviction was
supported by sufficient evidence and the trial court did not err
in refusing to instruct the jury that asportation was an element
of this offense.

Defendant next argues that the trial court denied defendant
his right to a properly instructed jury by failing to sua sponte
instruct the jury on the lesser offense of assault and battery.
Because defendant did not request an instruction regarding
assault and battery, the trial court did not err in failing to
give such an instruction, see People v Beach, 429 Mich
450, 482-483; 418 NW2d 861 (1988), and defendant was not denied
his right to a properly instructed jury. Furthermore, even if
defendant would have requested an instruction on assault and
battery, we do not believe that such an instruction would have
been warranted given the lack of an "inherent
relationship" between the two crimes at issue. See People
v Rollins, 207 Mich App 465, 468-469; 525 NW2d 484 (1994).In Rollins, this Court declined to find an inherent
relationship between kidnapping under MCL 750.349; MSA 28.581 and
assault and battery because kidnapping is not necessarily an
assaultive crime. We believe that conclusion to be equally
applicable to child kidnapping under MCL 750.350; MSA28.582, and
conclude that no inherent relationship exists between these two
crimes which would have justified the giving of an instruction
regarding assault and battery.

In a related argument, defendant argues that his counsel was
ineffective for failing to request an instruction on this lesser
offense. Given our conclusion that such an instruction would not
have been proper, defendant’s counsel was not ineffective for
failing to request such an instruction.

Finally, defendant argues that the trial court’s erroneous
instructions on the issue of reasonable doubt deprived defendant
of a properly instructed jury and a fair trial. Because defendant
did not object to these instructions below, review is foreclosed
absent manifest injustice. People v Ullah, 216 Mich App
669, 676; 550 NW2d 568 (1996). Here, we conclude that manifest
injustice will not result from our failure to provide review or
relief to defendant because the instructions as a whole
adequately conveyed to the jury the concept of reasonable doubt.
See People v Hubbard, 217 Mich App 459, 488; 552 NW2d 593
(1996).

Any person who willfully, maliciously and without lawful
authority shall forcibly or secretly confine or imprison any
other person within this state against his will, or shall
forcibly carry or send such person out of this state, or
shall forcibly seize or confine, or shall inveigle or kidnap
any other person with intent to exhort money or other
valuable thing thereby or with intent either to cause such
person to be held to service against his will, shall be
guilty of a felony, punishable by imprisonment in the state
prison for life or for any term of years.